S.B. No. 548 AN ACT 1-1 relating to the regulation of podiatry. 1-2 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-3 SECTION 1. Chapter 11, Title 71, Revised Statutes, is 1-4 amended by adding Article 4575d to read as follows: 1-5 Art. 4575d. CONFIDENTIALITY AND PRIVILEGE REQUIREMENTS 1-6 Sec. 1. In this article: 1-7 (1) "Patient" means a person who, to receive podiatric 1-8 care, consults or is seen by a person licensed to practice 1-9 podiatry. 1-10 (2) "Podiatric record" means any record relating to 1-11 the history, diagnosis, treatment, or prognosis of a patient. 1-12 Sec. 2. (a) A communication that relates to or is in 1-13 connection with professional services rendered as a podiatrist, 1-14 between a person who holds a license to practice podiatry and a 1-15 patient, is confidential and privileged and may not be disclosed 1-16 except as provided by this article. 1-17 (b) Records of the identity, diagnosis, evaluation, or 1-18 treatment of a patient by a podiatrist that are created or 1-19 maintained by a podiatrist are confidential and privileged and may 1-20 not be disclosed except as provided by this article. 1-21 (c) A person who receives information from confidential 1-22 communications or podiatric records, other than a person listed 1-23 under Section 5 or 6 of this article who is acting on the patient's 1-24 behalf, may not disclose the information except to the extent that 2-1 disclosure is consistent with the authorized purposes for which the 2-2 information was first obtained. 2-3 (d) The prohibitions of this section continue to apply to 2-4 confidential communications or records concerning a patient 2-5 irrespective of when the patient received the services of a 2-6 podiatrist. 2-7 Sec. 3. (a) The privilege of confidentiality under this 2-8 article may be claimed by the patient or by a podiatrist acting on 2-9 the patient's behalf. 2-10 (b) The podiatrist may claim the privilege of 2-11 confidentiality only on behalf of the patient. The authority to 2-12 claim the privilege is presumed in the absence of evidence to the 2-13 contrary. 2-14 Sec. 4. (a) An exception to the confidentiality and 2-15 privilege requirements under this article exists in a court or 2-16 administrative proceeding if: 2-17 (1) the proceeding is brought by the patient against a 2-18 podiatrist, including a malpractice proceeding or any criminal or 2-19 license revocation proceeding in which the patient is a complaining 2-20 witness and in which disclosure is relevant to the claims or 2-21 defense of a podiatrist; 2-22 (2) the patient or a person authorized to act on the 2-23 patient's behalf submits a written consent to the release of any 2-24 confidential information, as provided by Section 6 of this article; 2-25 or 2-26 (3) the purpose of the proceeding is to substantiate 2-27 and collect on a claim for podiatric services rendered to the 3-1 patient. 3-2 (b) An exception to the confidentiality and privilege 3-3 requirements under this article exists in a civil litigation or 3-4 administrative proceeding that is brought by the patient or another 3-5 person on the patient's behalf if the plaintiff is attempting to 3-6 recover monetary damages for any physical or mental condition, 3-7 including the death of the patient. Information is discoverable in 3-8 a court or administrative proceeding in this state if the 3-9 information is relevant to the proceeding and the court or 3-10 administrative body has jurisdiction over the subject matter under 3-11 the applicable rules of procedure specified for that matter. 3-12 (c) An exception to the confidentiality and privilege 3-13 requirements under this article exists in a disciplinary 3-14 investigation or proceeding against a podiatrist conducted under 3-15 this chapter. The board shall protect the identity of any patient 3-16 whose podiatric records are examined under this subsection, other 3-17 than those patients: 3-18 (1) covered under Subsection (a)(1) of this section; 3-19 or 3-20 (2) who have submitted written consent to the release 3-21 of their podiatric records as provided by Section 6 of this 3-22 article. 3-23 (d) An exception to the confidentiality and privilege 3-24 requirements under this article exists in a criminal investigation 3-25 of or criminal proceeding against a podiatrist in which the board 3-26 is participating or assisting by providing certain records obtained 3-27 from the podiatrist. The board shall protect the identity of any 4-1 patient whose records are provided in the investigation or 4-2 proceeding, other than patients covered under Subsection (a)(1) of 4-3 this section or who have submitted written consent to the release 4-4 of their podiatric records as provided by Section 6 of this 4-5 article. This subsection does not authorize the release of any 4-6 confidential information for the purpose of instigating or 4-7 substantiating criminal charges against a patient. 4-8 (e) An exception to the confidentiality or privilege 4-9 requirements under this article exists in a criminal prosecution in 4-10 which the patient is a victim, witness, or defendant. Records or 4-11 communications are not discoverable under this subsection until the 4-12 court in which the prosecution is pending makes an in camera 4-13 determination as to the relevancy of the records or communications 4-14 or any portion of the records or communications. That 4-15 determination does not constitute a determination as to the 4-16 admissibility of the records or communications or any portion of 4-17 the records or communications. 4-18 Sec. 5. (a) In circumstances other than those described by 4-19 Section 4, an exception to the confidentiality or privilege 4-20 requirements of this article exists only for, and a podiatrist may 4-21 disclose confidential information only to: 4-22 (1) a governmental agency, if: 4-23 (A) the disclosure is required or permitted by 4-24 law; and 4-25 (B) the agency protects the identity of any 4-26 patient whose podiatric records are examined; 4-27 (2) medical or law enforcement personnel, if the 5-1 podiatrist determines that there is a probability of: 5-2 (A) imminent physical injury to the patient, the 5-3 podiatrist, or others; or 5-4 (B) immediate mental or emotional injury to the 5-5 patient; 5-6 (3) qualified personnel for the purpose of management 5-7 audits, financial audits, program evaluations, or research; 5-8 (4) a person who presents the written consent of the 5-9 patient or another person authorized to act on the patient's behalf 5-10 for the release of confidential information, as provided by Section 5-11 6 of this article; 5-12 (5) an individual, corporation, or governmental entity 5-13 involved in the payment or collection of fees for services rendered 5-14 by a podiatrist; or 5-15 (6) another podiatrist and persons under the direction 5-16 of the podiatrist who are participating in the diagnosis, 5-17 evaluation, or treatment of the patient. 5-18 (b) A person who receives information under Subsection 5-19 (a)(3) of this section may not identify a patient, directly or 5-20 indirectly, in any report of the research, audit, or evaluation or 5-21 otherwise disclose a patient's identity. 5-22 (c) Records reflecting charges and specific services 5-23 rendered may be disclosed only when necessary in the collection of 5-24 fees for services provided by a podiatrist, professional 5-25 association, or other entity qualified to render or arrange for 5-26 services. 5-27 (d) Information otherwise confidential under this article 6-1 may be disclosed in an official legislative inquiry regarding a 6-2 state hospital or state school. However, information or records 6-3 that identify a patient or client may not be released for any 6-4 purpose unless proper consent to the release is given by the 6-5 patient. This subsection applies only to records created by the 6-6 state hospital, state school, or an employee of the state hospital 6-7 or state school. 6-8 Sec. 6. (a) Consent for the release of confidential 6-9 information must be made in writing and signed by: 6-10 (1) the patient; 6-11 (2) a parent or legal guardian if the patient is a 6-12 minor; 6-13 (3) a legal guardian if the patient has been 6-14 adjudicated incompetent to manage the patient's personal affairs; 6-15 (4) an attorney ad litem appointed for the patient, as 6-16 authorized by: 6-17 (A) the Texas Mental Health Code (Subtitle C, 6-18 Title 7, Health and Safety Code); 6-19 (B) the Persons with Mental Retardation Act 6-20 (Subtitle D, Title 7, Health and Safety Code); 6-21 (C) Subtitle B, Title 6, Health and Safety Code; 6-22 (D) Subtitle E, Title 7, Health and Safety Code; 6-23 (E) Chapter 5, Texas Probate Code; 6-24 (F) Chapter 11, Family Code; or 6-25 (G) another applicable law; or 6-26 (5) a personal representative if the patient is 6-27 deceased. 7-1 (b) The written consent required under this section must 7-2 specify: 7-3 (1) the information and records to be covered by the 7-4 release; 7-5 (2) the reasons or purposes for the release; and 7-6 (3) the person to whom the information is to be 7-7 released. 7-8 (c) The patient or other person authorized to consent has 7-9 the right to withdraw the consent to the release of any 7-10 information. Withdrawal of consent does not affect information 7-11 disclosed before the written notice of the withdrawal. 7-12 Sec. 7. A person who receives information made confidential 7-13 by this article may disclose the information to others only to the 7-14 extent consistent with the authorized purposes for which consent to 7-15 release the information was obtained. 7-16 Sec. 8. (a) A podiatrist shall furnish copies of podiatric 7-17 records requested or a summary or narrative of the records under a 7-18 written consent for release of the information as provided by 7-19 Section 6 of this article unless the podiatrist determines that 7-20 access to the information would be harmful to the physical, mental, 7-21 or emotional health of the patient. The podiatrist may delete 7-22 confidential information about another person who has not consented 7-23 to the release. 7-24 (b) The information shall be furnished by the podiatrist 7-25 within a reasonable period of time, and reasonable fees for 7-26 furnishing the information shall be paid by the patient or another 7-27 person acting on the patient's behalf. 8-1 SECTION 2. Chapter 11, Title 71, Revised Statutes, is 8-2 amended by adding Article 4576 to read as follows: 8-3 Art. 4576. PODIATRY SERVICES FOR CERTAIN HEALTH 8-4 ORGANIZATIONS. A licensed podiatrist may contract with a health 8-5 organization approved by the Texas State Board of Medical Examiners 8-6 under Section 5.01, Medical Practice Act (Article 4495b, Vernon's 8-7 Texas Civil Statutes), to provide podiatry services on its behalf. 8-8 SECTION 3. Article 4575d, Revised Statutes, as added by this 8-9 Act, applies only to podiatric records and information disclosed on 8-10 or after the effective date of this Act. Records and information 8-11 disclosed before that date are governed by the law in effect on the 8-12 date that the record or information is disclosed, and the former 8-13 law is continued in effect for that purpose. 8-14 SECTION 4. This Act takes effect September 1, 1995. 8-15 SECTION 5. The importance of this legislation and the 8-16 crowded condition of the calendars in both houses create an 8-17 emergency and an imperative public necessity that the 8-18 constitutional rule requiring bills to be read on three several 8-19 days in each house be suspended, and this rule is hereby suspended.